MANHATTAN (CN) — Former Indiana Congressman Stephen Buyer on Wednesday attempted to convince a panel of Second Circuit judges to overturn his conviction for insider trading, claiming his trial was riddled with speculative evidence that prejudiced the jury.
Jurors in Manhattan convicted him on four counts of securities fraud for netting some $350,000 in illegal stock trades based on inside information while he worked as a consultant and lobbyist after he left office. He was sentenced to 22 months in prison in September 2023.
Buyer bought shares of Sprint before its $26.5 merger deal with T-Mobile was announced in April 2018, according to his indictment, and also engaged in illegal trades with Navigant Consulting when his client Guidehouse was set to acquire it in a publicly disclosed deal weeks later.
But Buyer claimed Wednesday that his conviction was the result of trial testimony that should have been excluded, like that of Jessica Volchko, an FBI digital forensic examiner who testified about a forensic analysis on a cellphone that belonged to Christopher Stansbury, the sales director at Guidehouse and Buyer’s main contact at the government consulting firm.
Volchko “had nothing to do with the report’s creation,” his attorney Daniel A. Rubens of Orrick Herrington argued Wednesday.
Rubens added that Volchko was handed excerpts of the report just weeks before trial.
“There was no good reason for the government to have relied on this roundabout, improvised procedure to get the critical evidence in,” Rubens said. “Its error in doing so was highly prejudicial.”
Because Volchko did not perform the analysis detailed in the report, Rubens said, the testimony violated the Sixth Amendment’s confrontation clause, which guarantees a defendant the right to cross-examine witnesses.
But U.S. Circuit Judge Guido Calabresi, a Bill Clinton appointee, questioned if the testimony still violates the clause because the report included machine-generated analysis.
“It’s replete with statements, but some of them were machine-generated, and some of them were not really testimonial,” Calabresi said, referring to the report.
Rubens responded that machine- and human-generated statements in forensic technology operate on a “continuum,” and the statements in question cannot be created without input from a human analyst.
Assistant U.S. Attorney Jacob Fiddelman countered that there was no connection between the human analyst and the machine-generated statements.
“The contents of a computer hard drive, a cell phone, that’s just primary source evidence,” Fiddelman said. “It isn’t statements being offered by the person who isn’t there.”
In his own argument, Rubens pushed back on that characterization.
“There might be a case where you look at the technology and decide that there’s just no real human interaction or input, but the government didn’t even lay that foundation in terms of understanding the technology here,” Rubens said.
Buyer also claims that the government failed to establish that the case should be held in the Southern District of New York.
According to the government, the case should be held in New York because the New York Stock Exchange is headquartered in Manhattan and certain trading records are stored there.
But Buyer argues that the actual execution of the disputed trades took place on servers in New Jersey, which would be the proper venue for the case.
Fiddelman disagreed.
“The stock exchanges are located here,” Fiddelman said. “The New York Stock Exchange has an active trading floor here, and so when a person trades a stock on the New York Stock Exchange, they’re using an instrumentality of commerce that is located here.”
U.S. Circuit Judge Dennis Jacobs, a George H.W. Bush appointee, and U.S. Circuit Judge Debra A. Livingston, a George W. Bush appointee, also participated in the panel.